Employment terms and conditions - when do they start?

OFTEN, employers in practice will issue employment contracts which go above and beyond basic statutory requirements at the outset of an employee's appointment, as this is a helpful way of ensuring both parties understand what the employment relationship will look like and how it is to be regulated.

If, however, the terms are not finalised at the start, employers are obliged under the Employment Rights Act 1996 (ERA) to ensure that as a minimum, the employee is provided with a written statement of statutory particulars (known commonly as a s.1 statement of terms) no later than two months after their period of continuous employment begins. The employment particulars include basic employment information, such as a persons job title, place of work, salary and hours (please note this is not an exhaustive list!).

The ERA specifies that employers have two months from the start of employment to provide written statements of terms to their employees. Employers should be aware however, that the employees right to a statement is triggered after one month of continuous employment.

We are usefully reminded of this in the recently published case of Stefanko and Others v Maritime Hotel Limited. The claims brought in this case included the hotel's failure to provide its employees with s.1 statements in the time line set out in the ERA. One employee, Miss Woronowicz, had a total of six weeks service before she was dismissed. It was successfully argued in the first instance that she had no right to additional compensation for her employer's failure to provide a s.1 statement, as she had left employment before the two month window had elapsed.

The Employment Appeal Tribunal (EAT) however, held that this was incorrect. Whilst the ERA does allow a two-month window to provide a s.1 statement to an employee, because the right to the statement exists after one month, even if the person's employment ends before the two months are up, Miss Woronowicz was to be treated no differently to the claimants with more than two months service was entitled to additional compensation.

This case clarifies that in the event that an employee resigns or is dismissed after one month of continuous employment, but less than two months, the requirement for the statement to be issued remains. If the employer fails to provide this, any award for an automatic unfair dismissal could be increased as a result.

This position is re-enforced in the proposed changes set out in the Good Work Plan issued by the government in December 2018. From 6 April 2020 the requirement to provide a written statement of particulars will start from day one of engagement. In addition the right to receive a statement will be extended to workers e.g. consultants, agency staff, freelance staff and certain types of contractors, as well as employees.

In light of this, it is recommended that companies start putting the HR infrastructure in place now to ensure that contracts and statements of terms are issued from day one.

If you need any assistance with drafting or reviewing s.1 Statements; Contracts of employment, consultancy agreements and HR policies contact the Employment team at Wilson Browne who will be happy to help.